Details of the Financial Framework (Supplementary Powers) Amendment

(Prime Minister and Cabinet Measures No. 6) Regulations 2021

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Prime Minister and Cabinet Measures No. 6) Regulations 2021.

 

Section 2 - Commencement

 

This section provides that the Regulations commence on the day after the instrument is registered on the Federal Register of Legislation.

 

Section 3 - Authority

 

This section provides that the Regulations are made under the Financial Framework (Supplementary Powers) Act 1997.

 

Section 4 - Schedules

 

This section provides that the Financial Framework (Supplementary Powers) Regulations 1997 are amended as set out in the Schedule to the Regulations.

 

Schedule 1 - Amendments

 

Financial Framework (Supplementary Powers) Regulations 1997

 

Item 1 - Part 4 of Schedule 1AB (table item 492, column headed "Objective(s)")

 

Table item 492 in Part 4 of Schedule 1AB to the Financial Framework (Supplementary Powers) Regulations 1997 establishes legislative authority for government spending on the COVID-19 Disaster Payment (the payment). The National Recovery and Resilience Agency (NRRA) has policy responsibility for the payment. Individual payments are administered by Services Australia.

 

The following amendments to table item 492 clarify that the payment is not limited to persons who are employees at common law, that is, persons who perform work under an employment contract. As such, persons who are not employees at common law (for example, sole traders who trade under their own name and perform work on their own account) may be able to claim the payment, subject to meeting other eligibility criteria for the payment. This is consistent with the Government's policy intent to support workers who are, or were, unable to undertake their usual work and earn their usual income due to a state or territory public health order restricting the movement of persons. The current text of table item 492 may potentially be interpreted as providing legislative authority for making of the payment only to persons who perform work under an employment contract.

 

Item 1 replaces heading for the first objective of table item 492 in column headed "Objective(s)". The new heading "Certain persons residing or working in a COVID-19 hotspot unable to earn usual income" indicates a cohort of eligible persons to whom the first objective applies, including persons who are not employees at common law (for example, sole traders who trade under their own name and perform work on their own account).

 

Item 2 - Part 4 of Schedule 1AB (table item 492, column headed "Objective(s)", paragraph (c) (first occurring))

 

Item 2 omits "are employed in a location in Australia that is, or resided or were employed" from paragraph (c) (first occurring) in column headed "Objective(s)" of table item 492 and substitutes "work in a location in Australia that is, or resided or worked". This paragraph refers to the requirement for eligible persons to reside or work in a location in Australia that is, or was, subject to a state or territory public health order restricting the movement of persons for a period and determined by the Commonwealth Chief Medical Officer to be a COVID-19 hotspot for the purposes of Commonwealth support. The effect of this amendment is to expand the scope of this paragraph to include persons who are not employees at common law.

 

Item 3 - Part 4 of Schedule 1AB (table item 492, column headed "Objective(s)", paragraph (d) (first occurring))

 

Item 3 omits "work in their usual employment" from paragraph (d) (first occurring) in column headed "Objective(s)" of table item 492 and substitutes "undertake their usual work".

This paragraph refers to the requirement for eligible persons to be unable to undertake their usual work and earn their usual income because of the restrictions imposed by the public health order. The effect of this amendment is to expand the scope of this paragraph to include persons who are not employees at common law.

 

Item 4 - Part 4 of Schedule 1AB (table item 492, column headed "Objective(s)", paragraph (f) (first occurring))

 

Item 4 omits "are employed, or resided or were employed" from paragraph (f) (first occurring) in column headed "Objective(s)" of table item 492 and substitutes "work, or resided or worked". This paragraph refers to the requirement for eligible persons to declare that during the period of the restrictions they reside or work, or resided or worked, in the hotspot area. The effect of this amendment is to expand the scope of this paragraph to include persons who are not employees at common law.

 

Item 5 - Part 4 of Schedule 1AB (table item 492, column headed "Objective(s)", paragraph (f) (second occurring))

 

Item 5 omits "work in their usual employment" from paragraph (f) (second occurring) in column headed "Objective(s)" of table item 492 and substitutes "undertake their usual work". This paragraph refers to the requirement for eligible persons to be unable to undertake their usual work and earn their usual income because of the restrictions imposed by the second public health order. The effect of this amendment is to expand the scope of this paragraph to include persons who are not employees at common law.

 

Item 6 - Part 4 of Schedule 1AB (table item 492, column headed "Objective(s)")

 

Item 6 replaces heading for the third objective of table item 492 in column headed "Objective(s)". The new heading "Certain persons residing or working in State or Territory but outside COVID-19 hotspot unable to earn usual income" indicates a cohort of eligible persons to whom the third objective applies, including persons who are not employees at common law.

 

Item 7 - Part 4 of Schedule 1AB (table item 492, column headed "Objective(s)", paragraph (c) (third occurring))

 

Item 7 omits "are employed, or resided or were employed" from paragraph (c) (third occurring) in column headed "Objective(s)" of table item 492 and substitutes "work, or resided or worked". This paragraph refers to the requirement for eligible persons to reside or work in a state or territory that contains a location that is, or was, subject to a state or territory public health order restricting the movement of persons for a period and determined by the Commonwealth Chief Medical Officer to be a COVID-19 hotspot for the purposes of Commonwealth support, with the relevant state or territory having entered into an agreement with the Commonwealth to reimburse the Commonwealth for the financial assistance. The effect of this amendment is to expand the scope of this paragraph to include persons who are not employees at common law.

 

Item 8 - Part 4 of Schedule 1AB (table item 492, column headed "Objective(s)", paragraph (ca))

 

Item 8 omits "are not employed, or did not reside and were not employed" from paragraph (ca) in column headed "Objective(s)" of table item 492 and substitutes "do not work, or did not reside and did not work". This paragraph refers to the requirement for eligible persons not to reside or work in a location determined by the Commonwealth Chief Medical Officer to be a COVID-19 hotspot for the purposes of Commonwealth support. The effect of this amendment is to expand the scope of this paragraph to include persons who are not employees at common law.

 

Item 9 - Part 4 of Schedule 1AB (table item 492, column headed "Objective(s)", paragraph (f) (third occurring))

 

Item 9 omits "are employed, or resided or were employed" from paragraph (f) (third occurring) in column headed "Objective(s)" of table item 492 and substitutes "work, or resided or worked". This paragraph refers to the requirement for eligible persons to make a declaration in relation to where they reside and work, or resided and worked, during the period of the restrictions. The effect of this amendment is to expand the scope of this paragraph to include persons who are not employees at common law.

 

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Financial Framework (Supplementary Powers) Amendment (Prime Minister and Cabinet Measures No. 6) Regulations 2021

 

This disallowable legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the legislative instrument

 

Section 32B of the Financial Framework (Supplementary Powers) Act 1997 (the FF(SP) Act) authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the FF(SP) Regulations) and to make, vary and administer arrangements and grants for the purposes of programs specified in the Regulations. Schedule 1AA and Schedule 1AB to the FF(SP) Regulations specify the arrangements, grants and programs. The powers in the FF(SP) Act to make, vary or administer arrangements or grants may be exercised on behalf of the Commonwealth by Ministers and the accountable authorities of non-corporate Commonwealth entities, as defined under section 12 of the Public Governance, Performance and Accountability Act 2013.

 

The Financial Framework (Supplementary Powers) Amendment (Prime Minister and Cabinet Measures No. 6) Regulations 2021 (the Regulations) amend table item 492 in Part 4 of Schedule 1AB to the FF(SP) Regulations, which establishes legislative authority for government spending on the COVID-19 Disaster Payment (the payment). The National Recovery and Resilience Agency has policy responsibility for the payment. Individual payments are administered by Services Australia.

 

The amendments to table item 492 clarify that the payment is not limited to persons who are employees at common law, that is, persons who perform work under an employment contract. As such, persons who are not employees at common law (for example, sole traders who trade under their own name and perform work on their own account) may be able to claim the payment, subject to meeting other eligibility criteria for the payment. This is consistent with the Government's policy intent to support workers who are, or were, unable to undertake their usual work and earn their usual income due to a state or territory public health order restricting the movement of persons. The current text of table item 492 may potentially be interpreted as providing legislative authority for making of the payment only to persons who perform work under an employment contract.

 

Human rights implications

 

This disallowable legislative instrument engages the following rights:

*         the right to health in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2; and

*         the right to an adequate standard of living in Article 11 of the ICESCR.

 

 

Right to health

 

Article 2 of the ICESCR requires the States Parties to take steps to progressively achieve the full realisation of the rights recognised in the ICESCR by all appropriate means.

 

Article 12 of the ICESCR states, in part:

 

1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: [ ... ]

(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; [ ... ].

 

The amendments to table item 492 have the effect of broadening the group of individuals who are able to claim the payment. This disallowable legislative instrument promotes public health by ensuring that economic pressure is not a reason for persons to break state or territory public health orders and risk spreading COVID-19 to others.

 

Right to an adequate standard of living

 

Article 11(1) of the ICESCR states:

 

The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. [ ... ]

 

Similarly, this disallowable legislative instrument promotes the right to an adequate standard of living as the amendments to table item 492 have the effect of broadening the group of individuals who are able to claim the payment. This will ensure a greater number of vulnerable Australians are able to access financial support during a period of restrictions imposed by a state or territory public health order.

 

Conclusion

 

This disallowable legislative instrument is compatible with human rights because it promotes the rights to health and to an adequate standard of living.

 

 

 

 

 

Senator the Hon Simon Birmingham

Minister for Finance